Al-Baker v Al-Baker

Where a respondent is outside the jurisdiction, the court may direct service by email under the general service rule where the applicable provisions do not provide an adequate alternative and the respondent has received the documents. In a committal application, personal service may be dispensed with where the respondent has actual notice and a reasonable opportunity to present his case. The court may also abridge the prescribed notice period where fairness is preserved. Deliberate and defiant breach of disclosure orders may justify immediate imprisonment. A committal sentence is both punitive and coercive, and the contemnor must retain the opportunity to purge the contempt.

The applicant sought the committal of her husband for breach of two substantially identical disclosure orders made in ongoing financial remedy proceedings. The orders required disclosure of worldwide assets exceeding £15,000 and permitted service by email and post at specified addresses outside the jurisdiction.

The respondent had not been personally served with the committal application, but it had been sent by email to him and to lawyers who had been corresponding about related freezing orders. The issues were whether service of the orders and application was valid, whether personal service and the prescribed fourteen-day period could be dispensed with or abridged, and whether the respondent’s non-compliance warranted imprisonment.

1. Service of the disclosure orders. Chapter 4 of Part 6 of the Family Procedure Rules did not expressly provide for service by electronic communication outside the jurisdiction. Rule 6.1 applied generally to service and permitted the court to direct otherwise. The court therefore had power to authorise service by email where the primary methods were impracticable. The orders had been validly served in accordance with their terms.
2. Service of the committal application. Although Family Procedure Rule 37.10(4) required personal service, Rule 37.10(5)(a) permitted dispensation where justice required. The essential purpose of service was to ensure that the respondent knew what was happening and had a reasonable opportunity to present his case, consistent with Abela & Ors v Baadarani [2013] UKSC 44. Email service was effective because the respondent plainly knew of the application. Personal service was dispensed with.
3. Notice period. The period in Practice Direction 37A, paragraph 12.2, requiring at least fourteen days between service and the hearing, could be abridged. The respondent had thirteen days and nevertheless had a reasonable opportunity to respond.
4. Contempt and sentence. The respondent’s failure to comply was proved beyond reasonable doubt. His refusal was deliberate and defiant, with no good excuse. The court adopted an adamantine approach to non-compliance with lawful orders and regarded the case as more serious than Young v Young [2013] EWHC 34 (Fam), in which six months’ imprisonment had been imposed for non-disclosure. A sentence of nine months’ imprisonment was imposed forthwith.
5. The sentence had both punitive and coercive functions. The order therefore preserved the respondent’s right to apply to purge his contempt. The court was also satisfied, on the material before it, that the sentence could properly be backed by a request for a European arrest warrant under Article 2.1 of the Council Framework Decision of 13 June 2002.